DYCHE v. BONNEY

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

Before the Court is Plaintiff's Motion for Leave to File an
Amended Complaint. (Doc. 25-1). The parties have briefed the
issues, and the matter is ripe for disposition. For the reasons
stated below, the court will grant the motion in part and deny it
in part.

I. Background

Plaintiff Charles Dyche filed a Complaint on August 18, 2005.
(Doc. 1-1.) Plaintiff's Complaint asserted that Defendant Linda
Bonney, an employee of the Pennsylvania State Police ("PSP"), in
concert with two John Doe Defendants, participated in a violation
of Plaintiff's rights under the First, Fourth, and Fourteenth
Amendments. (Compl. ¶ 1.) Plaintiff contended that while he was
applying for a trooper position with the PSP, Defendants
conducted an unwarranted polygraph examination that resulted in
Plaintiff admitting to a sexual tryst with a minor that occurred
12 years before. (Id. ¶¶ 12-15.) Plaintiff asserted that this
information was used to remove him from the PSP Academy, where
Plaintiff was training to be a trooper. (Id. ¶ 23.) Plaintiff
argued that because Defendants knew of the sexual tryst, yet still admitted Plaintiff to the Academy, their
subsequent removal of Plaintiff from the Academy without a
hearing was done in violation of his rights of privacy and due
process. (Id. ¶¶ 16, 20-21, 23.) Plaintiff's Complaint survived
a motion to dismiss. (See Doc. 13.)

After conducting discovery, Plaintiff filed for leave to amend
his Complaint on July 11, 2005, asserting that he obtained new
information through the discovery process. (Doc. 25-1.)

II. Applicable Legal Standards

A. Motion to Amend

Once a responsive pleading has been served, "a party may amend
the party's pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a). Whether to grant or
deny the motion is within the court's discretion. Foman v.
Davis, 371 U.S. 182 (1962). A court may deny a motion for leave
to amend if "(1) the moving party has demonstrated undue delay,
bad faith, or dilatory motives; (2) the amendment would be
futile; or (3) the amendment would prejudice the other party."
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir.
2003). Mere delay will not warrant the denial of a motion for
leave to amend "absent a concomitant showing of undue prejudice
or bad faith." Zygmuntowicz v. Hospitality Invs., Inc.,
151 F.R.D. 53, 55 (E.D. Pa. 1993). "Amendment of the complaint is
futile if the amendment would not cure the deficiency in the
original complaint or if the amended complaint cannot withstand a
motion to dismiss." Massarsky v. General Motors Corp.,
706 F.2d 111, 125 (3d Cir. 1983). B. Motion to Dismiss

In deciding a motion to dismiss pursuant to Federal Rule
12(b)(6), the court is required to accept as true all of the
factual allegations in the complaint and all reasonable
inferences that can be drawn from the face of the complaint.
Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir.
2003). "The complaint will be deemed to have alleged sufficient
facts if it adequately put[s] the defendant[s] on notice of the
essential elements of the plaintiff's cause of action." Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996). The court will not
dismiss a complaint for failure to state a claim "unless it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Port Auth. of New
York & New Jersey v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir.
1999).

"To decide a motion to dismiss, courts generally consider only
the allegations contained in the complaint, exhibits attached to
the complaint and matters of public record." Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d
Cir. 1993) (citations omitted). Additionally, the court may
consider "undisputedly authentic document[s] that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff's
claims are based on the [attached] document[s]." Id. Moreover,
"documents whose contents are alleged in the complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading may be considered." Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).
However, the court may not rely on other parts of the record in
making its decision. Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Finally, in the Third Circuit, a court must grant leave to
amend before dismissing a complaint that is merely deficient.
See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir.
2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
"Dismissal without leave to amend is justified only on the
grounds of bad faith, undue delay, prejudice, or futility."
Alston v. Parker, 336 F.3d 229, 236 (3d Cir. 2004).

III. Discussion

Plaintiff proposes four additions to his Complaint.*fn1
First, Plaintiff asserts breach of contract claims against all
Defendants. Second, Plaintiff adds the PSP as a defendant. Third,
Plaintiff adds Barbara Christie, counsel to the PSP, as a
defendant. Fourth, Plaintiff adds Jeffrey Miller, Commissioner of
the PSP, as a defendant. The court will discuss each of the
proposed amendments in turn.

A. Breach of Contract Claims

In Plaintiff's proposed Amended Complaint, Plaintiff seeks to
assert breach of contract claims against the PSP and all
individual defendants. Plaintiff contends that because Plaintiff
was admitted to the Academy even though Defendants knew of
Plaintiff's prior sexual encounter with the minor, Defendants
breached their contract with Plaintiff when they removed him from
the Academy weeks later. No employment contract existed between the PSP and Plaintiff.
Plaintiff was a probationary employee, and as such was not
covered by the PSP Member Collective Bargaining
Agreement.*fn2 The probationary nature of Plaintiff's
position negates the expectation Plaintiff might have had in
continued employment. See Blanding v. Pennsylvania State
Police, 12 F.3d 1303, 1307 (3d Cir. 1993). Additionally, absent
a showing that state law has created a legitimate expectation of
continued employment, a public employee is presumed to be an
at-will employee. Id.; Cooley v. Pennsylvania Housing Finance
Agency, 830 F.2d 469, 471 (3d Cir. 1987). Plaintiff has not
asserted that he was anything but a probationary employee of the
PSP. Importantly, Plaintiff has not asserted any state law
grounds that demonstrate that Plaintiff had a legitimate
expectation of continued employment with the PSP.

Additionally, Plaintiff argues that because the PSP accepted
Plaintiff to the Academy knowing of his past indiscretions, the
PSP was estopped from removing Plaintiff from the Academy.
Plaintiff cannot make this claim. Under Pennsylvania law, an
at-will employee does not have a claim for estoppel based upon
alleged reliance on an employer's promise. Paul v. Lankenau
Hosp., 569 A.2d 346, 348 (Pa. 1990). In the absence of an
employment contract, Plaintiff's contractual claims are futile,
because they could not survive a motion to dismiss. As a result,
Plaintiff will not be permitted to amend his Complaint to add
breach of contract claims. B. Addition of the PSP as Defendant

Plaintiff seeks to add the PSP as a defendant, arguing that the
PSP is "obligated under state law to honor its contracts."
(Proposed Am. Compl. ¶ 7.) Plaintiff further alleges that the PSP
unlawfully denied him an opportunity to be heard regarding his
dismissal from the PSP Academy in violation of 42 U.S.C. § 1983.
(Id. ¶ 10.) Defendants argue that the PSP cannot be considered
a "person" under § 1983, and thus the procedural due process
claims against the PSP would be futile.*fn3

A § 1983 claim must assert that a "person" acting under the
color of law caused a deprivation of a right secured by the
Constitution. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.
2000). The state is not a "person" within the meaning of
42 U.S.C. § 1983. Will v. Michigan Dept. of State Police,
491 U.S. 58, 64 (1989). This rule applies to "[s]tates or governmental
entities that are considered `arms of the State' for Eleventh
Amendment purposes." Id. at 70. An "arm of the state" is a
department or agency that has no separate existence apart from
the state. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.
1981). The PSP is an arm of the state for Eleventh Amendment
purposes. See Altieri v. Pennsylvania State Police, No.
Civ.A.98-CV-5495, 2000 WL 427272, at *5 (E.D. Pa. Apr. 20, 2000).
As such, the PSP is not considered a "person" within the meaning
of § 1983. Thus, Plaintiff's § 1983 claims against the PSP could
not survive a motion to dismiss and it would be futile to add the
PSP as a defendant with respect to those claims. Accordingly, Plaintiff will not be permitted to amend his
Complaint to add the PSP as a defendant.

C. Addition of Barbara Christie as Defendant

In Plaintiff's proposed Amended Complaint, Plaintiff seeks to
add Barbara Christie, counsel to the PSP, as a defendant.
Plaintiff asserts that Ms. Christie attended two meetings at
which Plaintiff's position at the PSP was discussed, and she
provided legal advice to those present at the meeting. Plaintiff
contends that this advice led PSP Commissioner Jeffrey Miller to
make the ultimate decision to remove Plaintiff from the PSP
Academy. Plaintiff also contends that Ms. Christie assisted in
creating the policy that resulted in Plaintiff's removal from the
PSP Academy. Plaintiff argues that Ms. Christie's actions
violated his right to privacy, his right of association, and his
right to procedural due process. The court will discuss each
asserted right in turn, and will determine whether Plaintiff may
make claims under 42 U.S.C. § 1983 against Ms. Christie for
violations of these rights.

To prevail in an action under § 1983, a plaintiff must
demonstrate: (1) a violation of a right secured by the
Constitution and the laws of the United States and (2) that the
alleged deprivation was committed by a person acting under color
of state law. Nicini, 212 F.3d at 806; Moore v. Tartler,
986 F.2d 682, 685 (3d Cir. 1993).

1. Right to Privacy

Plaintiff alleges that Ms. Christie, while acting under color
of state law, violated his rights to privacy. Plaintiff alleges
that Ms. Christie was involved in creating PSP policy, which
Plaintiff alleges includes "arbitrary and capricious entry level
employment standards." (Doc. 25-2, ¶¶ 12, 17.) An individual has an interest in "avoiding disclosure of
personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). To
determine where that privacy interest has been violated, the
Plaintiff's interest is weighed against the government's interest
in obtaining the information. Id. at 602.

By asserting that Ms. Christie assisted in creating a policy
that resulted in an unwarranted invasion of Plaintiff's privacy,
Plaintiff has alleged that Ms. Christie violated his
constitutional right to privacy, and that Ms. Christie was acting
under color of law when she did so. Defendants have not, as yet,
asserted a state interest in receiving background information on
their prospective employees regarding past potential illegal
conduct. Thus, the court cannot balance Plaintiff's privacy
interest against Defendants' interest at this time. Therefore, it
is possible that Plaintiff's § 1983 claim for a violation of his
privacy rights could withstand a motion to dismiss. As such, it
is not futile, so Plaintiff will be permitted to amend his
Complaint to assert a § 1983 claim against Barbara Christie for
violating his right to privacy.

2. Right of Association

Two types of association rights are protected by the
Constitution: intimate association and expressive association.
Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh,
229 F.3d 435, 441 (3d Cir. 2000). Expressive association protects
association in groups for the purpose of expressing First
Amendment rights, such as speech, assembly, and the exercise of
religion. Roberts v. United States Jaycees, 468 U.S. 609,
617-18 (1984). Intimate association protects certain intimate
human relationships from government intrusion. Id.
Relationships protected as intimate associations are
distinguished by such attributes as "relative smallness, a high degree of selectivity in decisions to begin and maintain the
association, and seclusion from others in critical aspects of the
relationship." Id. at 620. Additionally, employees who claim
that adverse employment action was taken against them for
exercising their associational rights outside of employment must
show that they were engaged in constitutionally protected
conduct. Mt. Healthy School District Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977).

Plaintiff merely asserts that the actions of Ms. Christie
"effected a violation of . . . his right to associate." (Proposed
Am. Compl. ¶ 31.) Plaintiff does not assert the existence of an
expressive association because there is no claim that Plaintiff
sought employment with the PSP in order to exercise any of his
First Amendment rights.*fn4 Rather, Plaintiff appears to be
implying that Ms. Christie either prevented his association with
others in the PSP or impermissibly punished him for associating
with a minor. Neither qualifies as an intimate association
protected under the Constitution. First, common sense dictates
that a co-employee relationship, on its own, cannot give rise to
an intimate association; if it could, no employer could terminate
an employee without violating the employee's right of
association. Second, Plaintiff cannot argue that his illegal
sexual relationship with a minor is constitutionally protected,
such that the PSP could not take an adverse employment action
against him for having engaged in such an association. See Brown
v. Hartlage, 456 U.S. 45, 54 (1982) ("Although agreements to
engage in illegal conduct undoubtedly possess some element of association,
the State may ban such illegal agreements without trenching on
any right of association protected by the First Amendment.").
Consequently, Plaintiff cannot assert a violation of his right of
association against Barbara Christie that would survive a motion
to dismiss. Such a claim would be futile. As a result, Plaintiff
will not be permitted to amend his Complaint to assert a § 1983
claim against Barbara Christie for violation of a right of
association.

3. Procedural Due Process

Plaintiff asserts that Ms. Christie denied Plaintiff's right to
due process when Commissioner Jeffrey Miller, with Ms. Christie's
assistance, removed Plaintiff from the Academy without notice and
an opportunity to be heard.

To establish a denial of due process, Plaintiff must establish
either a property interest or a liberty interest sufficient to
justify notice and an opportunity to be heard. Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972). Absent a
property interest in his employment with the PSP, Plaintiff would
still be entitled to due process if he could establish a
violation of his liberty interest. Id. at 571.

To establish a property interest, Plaintiff must have more than
a "unilateral expectation" of continued employment. Roth,
408 U.S. at 577. He must, instead, have a legitimate claim of
entitlement to employment created expressly by state statute or
regulation or arising from government policy or a mutually
explicit understanding between the PSP and him. See Carter v.
City of Philadelphia, 989 F.2d 117, 120 (3d Cir. 1993). The court has already established that Plaintiff had no
contract with the PSP. As a probationary employee in training at
the Academy, Plaintiff had no legitimate expectation of continued
employment. See Blanding, 12 F.3d at 1306-07. Plaintiff has not
claimed more than a unilateral expectation of employment based on
his admittance to the Academy. Again, Plaintiff's employment with
the PSP is presumed to be at-will absent a showing of legitimate
entitlement. See Cooley, 830 F.2d at 471. Thus, Plaintiff fails
to assert any legitimate claim of entitlement to this position.
As a result, Plaintiff cannot establish a property interest in
his employment sufficient to justify notice and an opportunity to
be heard.

In order to establish a liberty interest, Plaintiff must show
that the State "imposed on him a stigma or other disability that
foreclosed his freedom to take advantage of other employment
opportunities." Id. at 573. In this context, in order for due
process protection to have purpose, "[t]here must be some factual
dispute between an employer and a discharged employee which has
some significant bearing on the employee's reputation." Codd v.
Velger, 429 U.S. 624, 627-28 (1977). A hearing is required only
where "the employer creates and disseminates a false and
defamatory impression about the employee in connection with his
termination." Id. at 627. Plaintiff asserts that Defendants
knew "the devastating effect the dismissal from the Academy would
have upon his life and his professional reputation." (Proposed
Am. Compl. ¶ 31.) This is insufficient to establish a liberty
interest. Plaintiff was removed from the Academy for an illegal
sexual relationship with a minor, an act that Plaintiff does not
assert is false. There was no factual dispute between Plaintiff
and the PSP that bore on Plaintiff's reputation. Thus, Plaintiff
cannot assert that the PSP or any agents of the PSP created or
disseminated a false or defamatory impression about him. As such, Plaintiff cannot assert
any right to a hearing based upon a denial of his liberty
interests. Consequently, Plaintiff's assertion of a denial of due
process would not survive a motion to dismiss. As such, it is
futile, and Plaintiff's Amended Complaint will not be permitted
to assert a denial of due process against Barbara Christie.

In sum, Plaintiff will be permitted to amend his Complaint to
add Barbara Christie as a defendant, but only to assert a § 1983
claim based on a violation of his right to privacy against her.

D. Addition of Jeffrey Miller as a Defendant

Plaintiff also seeks to add Jeffrey Miller, Commissioner of the
PSP, as a defendant. Plaintiff contends that Miller assisted in
the creation of the policy that led to Plaintiff's removal from
the Academy. Plaintiff also asserts that it was Miller who made
the ultimate decision to remove Plaintiff. Plaintiff argues that
Miller violated his rights to privacy, association, and due
process when Miller removed Plaintiff from the PSP Academy.

Defendants do not contest the addition of Jeffrey Miller as a
defendant. As a result, the court will permit Plaintiff to amend
his Complaint to add Jeffrey Miller as a defendant and assert
Plaintiff's § 1983 claims against him for violating his rights to
privacy, association, and due process. IV. Conclusion

For the reasons set forth above, the court will grant in part
and deny in part Plaintiff's Motion to Amend. Plaintiff may amend
his Complaint to add Barbara Christie and Jeffrey Miller as
defendants. Plaintiff may not add the PSP as a defendant, or
assert § 1983 claims against Ms. Christie for a denial of
procedural due process or a denial of his right of association.
Additionally, Plaintiff may not assert breach of contract claims
against any defendant in this action. An appropriate order will
issue. ORDER

In accordance with the foregoing memorandum of law, IT IS
HEREBY ORDERED THAT:

1) Plaintiff's motion for leave to amend his Complaint is
GRANTED in part and DENIED in part as follows:

a) Plaintiff's Amended Complaint may not add the
Pennsylvania State Police as a Defendant.

b) Plaintiff's Amended Complaint may add Barbara
Christie as a Defendant, and may assert a claim for a
denial of his right to privacy against her; however
Plaintiff's Amended Complaint may not assert claims
against Ms. Christie for a denial of procedural due
process or a right to association.

c) Plaintiff's Amended Complaint may add Jeffrey
Miller as a Defendant, and may assert claims for lack
of procedural due process, a denial of a right of
association, and a denial of his right to privacy
against him. d) Plaintiff may not assert breach of contract claims
against any Defendant.

2) Plaintiff's Proposed Amended Complaint (Doc. 25-2) is
rejected.

3) Plaintiff shall file an Amended Complaint in accordance with
the foregoing no later than November 30, 2005.

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